APPLICANT CHARGED WITH MURDER APPLIES FOR BAIL UNDER THE EXCEPTIONAL CIRCUMSTANCES

Bail application by Harry Dickenson [2020] VSC 721  (29 October 2020)

This case is an application for bail where the applicant is charged with murder wherein he has the obligation to satisfy the court that exceptional circumstances exist to justify the grant of bail.

Facts:

The applicant, Harry Dickenson, is charged with the offence of murder. As the applicant is accused of committing a Schedule 1 offence under the  Bail Act 1977 both parties accept that bail must be refused unless the applicant can satisfy this court that exceptional circumstances exist that justify the grant of bail.

The applicant relies on a number of matters to seek to satisfy the court that there are exceptional circumstances justifying the grant of bail. In particular, the applicant points to the weakness of the prosecution case.

The applicant relies upon a number of matters in submitting that the prosecution case is weak, namely: there are no admissions from the applicant; no witness has given evidence that they saw the applicant shoot the deceased; other people were at the scene and, it was submitted, another possible shooter has not been excluded; there was no gunshot residue, bullets, blood or other clues at the location pointing to the applicant; and evidence concerning a firearm found at another location was inconclusive in connecting the applicant with the shooting. In these circumstances, it was submitted that the case that the applicant was the shooter was mere conjecture.

Further, in relation to the strength of prosecution case, there were a number of matters relied upon in submitting that (if it were accepted the applicant was the shooter then) the reasonable possibility of self-defence or the defence of others could not be excluded. These included: the violent reputation and prior criminal history of the deceased; evidence that the deceased was in the possession of a shot gun; the deceased’s stated position that he believed the applicant had stolen his wallet; the deceased's attendance at the Grovedale address with the intention to commit an aggravated burglary; the deceased's ongoing and hostile threats to “run through” and “light up” the dwelling at the address; and the deceased's presentation of a gun towards another at the scene while giving an order to that person and then approaching the dwelling.  In short, it was submitted that in these circumstances the reasonable possibility of self-defence or defending others could not be set aside beyond reasonable doubt.

The prosecution said 3 persons present at the time of the shooting had all given statements and that it was its position that it could not be realistically suggested that anyone other than the applicant could have been the shooter.  Further, reference was also made to events both before and after the shooting which were contended to implicate the applicant.  In relation to the issue of self-defence, it was accepted that there was no strict narrative as to how the shooting occurred, which was said to raise issues for the applicant in putting forward a case of self-defence as well as creating issues for the prosecution.

Issue: Should the court grant the bail of the applicant?

Law:

• S4A of the Bail Act requires the applicant to show that exceptional circumstances exist justifying the grant of bail which includes

(b) strength of the proescution’s case

Analysis:

The key factors in this application include the real and substantive issues that have been raised in relation to the weaknesses of the case against the applicant and the very substantial supports that have been put in place if bail were granted.  In the court’s view, when these are considered in combination, they amount to exceptional circumstances.  Further, the conditions the applicant is currently facing while on remand, the prospect of facing in excess of 2 years of incarceration before trial and a surety of $100,000 only heighten the exceptional circumstances relating to this application.

Further, despite the very chequered background of the applicant, much of it has a very strong connection with his previous ongoing drug use.  In the strict regime that has been put in place, any ability to take drugs has effectively been curtailed as any lapse will be almost immediately be detected and will result in bail being breached and the applicant being placed on remand again.

Conclusion: For the reasons stated above, bail is granted.

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